National Consumer Disputes Redressal
Ramdhari D. Mishra vs Dilip S. Gada (Shah) And Ors. on 21 March, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2359 OF 2007 (Against the Order dated 19/06/2007 in Appeal No. 970/2007 of the State Commission Maharastra) 1. RAMDHARI D. MISHRA MR. RAMDHARI DEVENARAYAN MISHRA SHOP NO . 1. DEV DARSHAN YASHWANT NAGAR SANTARUZ E. MUMBAI 400055. ...........Petitioner(s) Versus 1. DILIP S. GADA (SHAH) AND ORS. R/O. 604. SMIT APARTMENTS . GHATKOPAR E. MUMBAI 400077 2. M/S. SUPERIOR BUILDERS - 3. KAILASH KHEDKAR - 4. JAGANNATH B. KHEDKAR - ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA,PRESIDING MEMBER
For the Petitioner : For the Respondent :
Dated : 21 Mar 2017 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For Petitioner
:
Mr. Pradeep Aggarwal, Advocate with
Mr. Lal Pratap Singh, Advocate
Mr. Umesh Pratap Singh, Advocate
For Respondent No. 1
:
Mr. Anand Patwardhan, Advocate
For Respondents No. 2 to 4
:
Mr. Vikas Nautiyal, Advocate
PRONOUNCED ON : 21st MARCH 2017
O R D E R
PER DR. B.C. GUPTA, MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned orders dated 07.06.2007 and 19.06.2007, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in Miscellaneous Application No. 614/2004 in consumer complaint No. C-71/98, in the Execution Proceedings against the opposite party (OP) builder.
2. The facts of the case are that the complainant Dilip S. Gada (Saha) entered into an agreement for purchase of flat No. 501 in the building of Friends' Cooperative Housing Limited, being constructed on plot No. 30, Sector 7, Airoli, Navi Mumbai, District Thane from respondent No. 2/Opposite Party-1 (OP) M/s. Superior Builders and paid a sum of ₹5,10,000/-. The price of the flat was later revised to ₹6,15,000/- to be paid on or before 27.06.96. The OPs/respondents Kailash Khedkar and Jagannath Bhikaji Khedkar (J.B. Khedkar) are the partners in the said firm Superior Builders. However, later on, the said building was taken over by the present petitioner Ramdhari Devnarayan Mishra who stepped into the shoes of the original builders. The complainant filed complaint No. 71/1998 before the State Commission against the original builders, alleging that the original builders had failed to hand over the possession of the said premises to the complainant, even after accepting the deposit of ₹5 lakh. The complainant sought relief saying that a direction be given to the builders to complete the construction of the proposed building, with all amenities as stated in the agreement dated 27.02.1995. In case, they were unable to do so, they should be asked to refund the amount of ₹5 lakh deposited with them, alongwith a further interest of ₹5 lakh.
2. The complaint was resisted by the OP Builders by filing a written statement before the State Commission in which they stated that as per the revised plan of the building, the area of the flat being constructed had also increased from 850 sq. ft. to 955 sq. ft. and the total amount payable was ₹9,55,000/- and hence, the complainant was still to pay the balance amount of ₹4,55,000/- to them. The OPs stated that due to recession in the real estate and the money market, the purchasers were not coming forward to make payments. However, the OPs were willing to accept the remaining amount and were ready to finish the work and deliver possession. The OP also stated that they were prepared to refund the amount of ₹5 lakh without interest to the complainant.
3. The State Commission passed an order dated 2.01.2003 in the consumer complaint, by which they directed the OPs to refund the amount of ₹5 lakh deposited by the complainant alongwith interest @18% p.a. from the date of payment till realisation and also to pay ₹1 lakh as compensation to the complainant and ₹7,500/- as cost of litigation. The order of the State Commission was not challenged by either of the parties in appeal/revision petition and hence, became final. The complainant then made an execution application No. 614/2004 on 11.03.2004 before the State Commission. It was stated in the said application that the amount payable to the complainant as on 29.02.2004 in accordance with the order of the State Commission dated 2.01.2003 was ₹12,84,906/-. However, since the OP Builders had not paid the said amount in pursuance of the order of the State Commission, the application had become entitled to have the property attached. It was prayed that the award should be executed by taking possession of the flat in question. It was also stated in the execution application that in the event of the applicant opting for possession of the flat, the same should be handed over to him in full and final satisfaction of the Award. As per order dated 12.03.2004, recorded by the State Commission, the OP J.B. Khedkar, appeared before the State Commission and stated that the construction of the building had been completed and the flat earmarked for the complainant was ready and they were willing to hand over the possession of the flat to the complainant. He also gave a statement that the said flat shall be handed over to the complainant in the first week of June 2004. Learned counsel for the complainant also stated that they were willing to accept the flat. A direction was issued by the State Commission to the OPs that they shall not create any third party interest in respect of the flat in question. Further, as per another order dated 01.07.2004 made by the State Commission, it was stated that the matter was not finalised as recorded in the order dated 12.03.2004. The State Commission appointed a court receiver to take possession of the flat after following usual procedure. As stated in the order dated 13.01.2005 of the State Commission, the court receiver filed his report dated 23.07.2004 before the State Commission, saying that he could not get possession of the flat, as he found that Ramdhari Devnarayan Mishra (R.D. Mishra), the proprietor of M/s. Mishra Builders and developers, the present petitioner was in actual possession of the entire building including flat No. 501 and the said R.D. Mishra refused to hand over the possession of the flat to the receiver. The State Commission issued bailable warrants against J.B. Khedkar, for non-payment of a sum of ₹12,66,798/-. Further, there is a document carrying the signatures of the petitioner R.D. Mishra and the previous builder J.B. Khedkar, saying that both of them were taking over the liability under Consumer Complaint No. 71/1998 and M.A. No. 614/2004. The State Commission passed an order dated 29.03.2005 in which the learned counsel for Superior Builders made a statement at the Bar that fresh registered agreement in favour of the complainant by the new builders will be executed within two weeks of the date of the order. The State Commission recorded an order dated 21.04.2005, issuing bailable warrants against J.B. Khedkar and the new builder R.D. Mishra. Further, on record is a copy of the agreement dated 05.07.2005 between the Complainant and R.D. Mishra, according to which the complainant agreed to purchase flat No. 801, measuring 764 sq. ft. in the same building for a sum of ₹9,51,000/-. It was stated in the agreement that the developer shall hand over legal possession of the premises to the purchaser on or before 01.02.2006. The said agreement is signed by the petitioner R.D. Mishra and the complainant Dilip S. Gada (Saha). A copy of the receipt issued by the petitioner R.D. Mishra has been placed on record, according to which, he received a sum of ₹9,51,000/- from the complainant Dilip S. Gada (Saha). Another document dated 03.05.2005 with the title "Memo of handing over key" has been placed on record, in which it is stated that J.B. Khedkar, the previous builder and R.D. Mishra, the new builder had handed over one key of flat 801 to the complainant on that date for making furniture and some sanitary work. It was stated in the said document that the second key will be handed over to the complainant after obtaining the occupation certificate, which was expected to be received within a time of 6 to 8 months. The second key was kept with the developer for finishing the balance work of the flat. It was also stated that the key was being handed over in pursuance of the statements recorded in the State Commission in MA No. 614/2004. Vide impugned order dated 07.06.2007, it has been stated that the earlier warrant had not been executed and a demi-official letter should be written to the Commissioner of Police, Mumbai. A non-bailable warrant was ordered to be issued against R.D. Mishra. Vide another order dated 19.06.2007, it was stated that as per the registered agreement signed between the complainant and the new builder, clause No. 11, occupation certificate of the building was to be obtained by the builder within 6 to 8 months from the agreement but the builder failed to obtain the same, and hence, non-bailable warrants were being issued against R.D. Mishra as he had failed to comply with the terms and conditions of the registered agreement.
4. The order dated 19.06.2007 was challenged before this Commission by way of Revision Petition No. 2359/2007. The said petition was ordered to be dismissed in default for non-appearance of the petitioner R.D. Mishra. The application for restoration of the petition was also not allowed. The petitioner filed a Civil Appeal No. 7098/2014 before the Hon'ble Apex Court. As per order dated 30.07.2014 passed by the Hon'ble Apex Court, the said appeal was allowed. The order dated 01.11.2011 of this Commission was set aside and this Commission was directed to dispose of the revision petition on merits.
5. From the above factual matrix of the case, it is apparent that the petitioner builder has taken the stand that refund should be allowed to the complainant strictly in terms of the order dated 2.01.2003 passed by the State Commission. However, the complainant seeks implementation of the agreement entered between the petitioner builder and the complainant as per which another flat was agreed to be delivered to the complainant during the pendency of the execution proceedings between the parties.
6. The main thrust of the arguments advanced by the learned counsel for the petitioner/builder revolves around the fact that the order dated 2.01.2003 passed by the State Commission had attained finality and hence, the said order only, should be the subject of execution by the Consumer Fora. The learned counsel stated that in pursuance of the order dated 27.07.2007 passed by this Commission during pendency of the revision petition, the petitioner had deposited a sum of ₹15,42,000/- before the State Commission on 09.08.2007. The said amount would have become almost ₹28 lakhs today, after taking into account the interest accrued on the same, meaning thereby that the complainant shall be getting almost 5 times, the amount deposited by him. The complainant was, therefore, not entitled to anything else, except this amount. It was clear from the reply to the revision petition, filed by the complainant/respondent that the order dated 2.01.2003 had not been challenged by them anywhere and hence, the said order had attained finality. The learned counsel further stated that in case, there was a subsequent agreement for the transfer of another plot, that could be the subject matter of separate proceedings. It was clear, therefore, that plot No. 801, was not part of the order of the State Commission under execution. The learned counsel vehemently argued that the executing court could not go beyond the original decree, as per settled proposition of law.
7. Per contra, the learned counsel for the complainant/respondent No. 1 stated that during execution proceedings, the petitioner himself had represented that he was ready to provide a new flat in execution of the order passed by the State Commission. Consequently, the agreement dated 04.07.2005 for the purchase of flat No. 801 was entered between the parties. In the letter of possession also, it is stated that one key had been handed over to the complainant and the other was retained by the builder for carrying out certain development works.
8. The learned counsel argued that the present revision petition had been filed limited to the orders dated 07.06.2007 and 19.06.2007 vide which non-bailable warrants had been ordered to be issued against the petitioner. The order dated 27.07.2007 passed by this Commission by which the decreed amount alongwith interest was ordered to be deposited, was for the purpose of stay order only. The learned counsel has drawn attention to the orders passed in execution proceedings by the State Commission from time to time and stated that the Advocate for the petitioner had made a statement at the Bar before the State Commission on 29.03.2005 that registered agreement in favour of the applicant will be executed within two weeks. In response to this order, a new agreement dated 08.07.2005 was made for selling another flat to the complainant. One key was also handed over to the complainant and a memo to this effect was drawn on 03.05.2005. The petitioner was, therefore, estopped from backing out of the said agreement at the stage and hence, he should be directed to hand over the new flat to him. The learned counsel has drawn attention to the following judgments in support of his arguments, saying that once a compromise was arrived at between the parties and consent decree passed, the parties were bound by the same.
"1 K.L. Chaumal vs. Pushpa Builders Ltd.
[RP No. 1745/2000 decided on 14.12.2001.]
2. Wordwide Immigration Consultancy Services Ltd. vs. Reliance General Insurance Co. Ltd. & Ors.
[RP No. 2270/2011 decided 1.04.2011]
3. State Bank of India vs. Sita Devi [RP No. 1645/2008 decided 22.08.2013]
4. Shobhit Elhance & Anr. vs. Matrix Build Well Pvt. Ltd. & Ors.
[RP No. 1864 to 1866 of 2014 decided on 08.01.2014]
5. Ningappa Hanamanppa Kador vs. Hindustan Motors Ltd.
[RP No. 2885 of 2006 decided on 24.09.2010]"
9. In reply, the learned counsel for the petitioner again stated that it was the fundamental question of jurisdiction as to whether the executing court could go beyond the original decree between the parties.
10. The learned counsel for the complainant/respondent-1 has drawn attention to MA No. 1198/2007 filed by the petitioner before the State Commission, in which he admitted that on humanitarian grounds, he had agreed to provide another flat No. 801 in the same building to the complainant and executed a registered document to that effect and also handed over one key to him. The petitioner stated in that application that if the complainant was interested to get his money back, he should surrender the agreement dated 05.07.2005 for flat No. 801 and also hand over the key of the flat back to him. The petitioner prayed before the State Commission that pending the disposal of the application, the orders for issuing non-bailable warrants vide order dated 07.06.2007 should be recalled. It is evident from the own version of the petitioner that he had himself entered into a registered agreement for providing a new flat to the complainant.
11. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.
12. The case of the petitioner/successor builder is that the order dated 02.01.2003, passed by the State Commission in dispute between the parties had attained finality. At the execution stage, the concerned court/tribunal had no jurisdiction to go beyond the contents of the final order. However, a perusal of the documents on record indicates that in execution proceedings between the parties, a statement was given before the State Commission on 12.03.2004 by the previous builder that the construction of the building in question had been completed and the flat earmarked for the complainant was ready and the possession will be handed over to the complainant in the first week of June 2004. The complainant also gave a statement before the State Commission that he was willing to accept the said flat. Later on, the liability of the previous builder was taken over by the present builder as per copy of a document dated 18.02.2005 placed on record. On 29.03.2005, a statement was made at the Bar by the OP builders that fresh registered agreement in favour of the complainant by the new builders shall be executed within two weeks from that day, i.e., 29.03.2005. However, since they failed to comply with the commitment, the State Commission issued non-bailable warrants against the previous builder and the present builder/petitioner R.D. Mishra vide order dated 21.04.2005. The two builders made a joint declaration on 03.05.2005 that they had handed over one key of flat No. 801 in the same building and the second key will be handed over to the complainant after obtaining the occupation certificate. A registered agreement dated 05.07.2005, was also executed between the petitioner and the complainant, according to which flat No. 801 was agreed to be handed over to the complainant for a price of ₹9,51,000/-. It was stated that the legal possession of the said premises shall be handed over on or before 01.02.2006. A receipt signed by the petitioner has also been issued, saying that the said sum of ₹9,51,000/- stood received by the petitioner. It is not understood, therefore, that after having taken all the steps including the execution of a registered agreement why the petitioner is trying to back-out of the said agreement. The statements made by him before the State Commission and the documents executed make it clear that the petitioner is estopped by his deeds and actions from taking any contrary view in the matter, other than handing over of flat No. 801 to the complainant. The contention raised by the learned counsel for petitioner that in execution proceedings, the petitioner was liable to pay the amount as indicated in the order dated 02.01.2003 to the complainant is without any force and is liable to be rejected, and I order accordingly.
12. Based on the discussion above, the orders passed by the State Commission are upheld as there is no illegality, irregularity or jurisdictional error in the same. The revision petition stands dismissed. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER